Form and style amendments to Rule 801
consistent with the 2011 federal amendments are
proposed. The amendments are not intended to change any result in any ruling on evidence
admissibility.

The North Dakota rule has always differed from the federal rule in that
it allows prior
inconsistent statements to be used as substantive evidence in civil cases and, if the prior
statement was made under oath, in criminal cases. This
formulation has been retained and
it differs from the federal rule because the federal rule requires that the prior statement be
made under oath in all cases.

Additional language was added to the federal rule in 1997. This language
is at the very end
of the proposed rule and is highlighted. The federal rule was amended in response to a
conspiracy case. The notes to the federal rule explain that the amendment is designed to
provide "that the contents of the declarant's statement do not alone suffice to establish a
conspiracy in which the declarant and the defendant participated. The court must consider
in addition the circumstances surrounding the statement, such as the identity of the speaker,
the context in which the statement was made, or evidence corroborating the contents of the
statement in making its determination as to each preliminary question." The committee may
wish to discuss whether the 1997 federal language should be added to Rule 801.